1 BY ORDER DATED 3 MAY 1973 FILED AT THE REGISTRY ON 13 JUNE 1973 THE COURT OF APPEAL, PARIS, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY TWO QUESTIONS OF INTERPRETATION REGARDING THE EXTENT OF APPLICATION OF ARTICLES 27 AND 28 OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS .
2 IT APPEARS FROM THE FILE THAT THE FIRST DEFENDANT, WHO IS OF ITALIAN NATIONALITY, HAS RECEIVED AS FROM 25 NOVEMBER 1955 UNDER FRENCH LEGISLATION ON INVALIDITY BENEFITS ( REFERRED TO IN ANNEX F OF THE REGULATION AS BEING OF TYPE A, I.E . ACCORDING TO WHICH THE BENEFITS ARE USUALLY CALCULATED INDEPENDENTLY OF THE DURATION OF THE PERIODS COMPLETED ) AN INVALIDITY PENSION CONVERTED, AS FROM HER SIXTIETH BIRTHDAY IN 1965, INTO AN OLD-AGE PENSION, ALTHOUGH FROM 1 MAY 1964 SHE HAS BEEN RECEIVING IN ITALY, WHERE SHE WORKED FROM 1957 TO 1964, A SECOND INVALIDITY PENSION UNDER ITALIAN LEGISLATION ( REFERRED TO AS BEING OF TYPE B, I.E . ACCORDING TO WHICH BENEFITS ARE USUALLY CALCULATED TAKING INTO ACCOUNT THE DURATION OF THE PERIODS COMPLETED ).
3 THE MAIN ACTION BASICALLY RELATES TO THE QUESTION WHETHER, HAVING REGARD TO THIS LAST FACT, THE FRENCH INSTITUTION RESPONSIBLE FOR THE INVALIDITY PENSION IS ENTITLED TO REDUCE IT BY APPLYING THE PROVISIONS OF ARTICLE 28 ( 1 ) AND ( 3 ) OF REGULATION NO 3 IN THE CALCULATION OF ITS AMOUNT .
4 THUS THE QUESTIONS RAISED ARE BASICALLY AIMED AT DEFINING THE RESPECTIVE RELATIONSHIPS BETWEEN ARTICLES 26, 27 AND 28 OF REGULATION NO 3 AND, IN PARTICULAR, AT ASCERTAINING WHETHER THE APPORTIONMENT OF THE AMOUNT OF BENEFITS PROVIDED FOR BY ARTICLE 28 IN THE CASE OF OLD-AGE PENSIONS AND PENSIONS ON DEATH MUST BE APPLIED TO INVALIDITY PENSIONS " ALTHOUGH THERE IS NO NEED TO HAVE RECOURSE TO THE APPLICATION OF ARTICLE 27 FOR THE ACQUISITION OF PENSION RIGHTS ".
5 ACCORDING TO ARTICLE 26 OF REGULATION NO 3, ARTICLES 27 AND 28 RELATING TO OLD-AGE AND DEATH PENSIONS " SHALL APPLY BY ANALOGY " TO THE PAYMENT OF INVALIDITY BENEFITS WHEN THE INSURED HAS COMPLETED PERIODS UNDER DIFFERENT LEGISLATIONS OF WHICH AT LEAST ONE IS OF TYPE B .
6 THE BASIS, FRAMEWORK AND LIMITS OF THE REGULATIONS ON SOCIAL SECURITY ARE CONTAINED IN ARTICLES 48 TO 51 OF THE TREATY, INTENDED TO SECURE FREEDOM OF MOVEMENT FOR WORKERS .
7 FROM THIS POINT OF VIEW, ARTICLE 51 OF THE TREATY AND ARTICLE 27 OF REGULATION NO 3 REFER IN ESSENCE TO THE CASE WHERE THE LEGISLATION OF A MEMBER STATE ON ITS OWN DOES NOT ENTITLE THE PERSON CONCERNED TO A BENEFIT BY REASON OF THE INSUFFICIENT TIME COMPLETED UNDER THIS LEGISLATION .
8 TO REMEDY THIS SITUATION THESE PROVISIONS PROVIDE, FOR THE BENEFIT OF THE WORKER WHO HAS BEEN SUBJECT SUCCESSIVELY OR ALTERNATELY TO THE LEGISLATION OF TWO OR MORE MEMBER STATES, FOR THE AGGREGATION OF PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATION OF EACH OF THESE STATES .
9 AS REGARDS OLD-AGE AND DEATH PENSIONS, ARTICLES 27 AND 28 OF REGULATION NO 3 APPLY TO THIS SITUATION, BUT NOT WHEN IN A STATE THE OBJECT SOUGHT BY ARTICLE 51 IS ATTAINED UNDER THE NATIONAL LEGISLATION ALONE .
10 THE SCHEME OF ARTICLES 27 AND 28 THUS IMPLIES A SIMULTANEOUS APPLICATION OF THESE TWO PROVISIONS .
11 AS A RESULT, APPORTIONMENT OF BENEFITS MAY NOT BE MADE, UNLESS IT HAS BEEN NECESSARY, IN ORDER TO GIVE RISE TO ENTITLEMENT, TO AGGREGATE BEFOREHAND THE PERIODS COMPLETED UNDER DIFFERENT LEGISLATIONS, BUT IT MAY NOT BE USED TO REDUCE THE BENEFITS WHICH THE PERSON CONCERNED CAN CLAIM UNDER THE LEGISLATION OF A SINGLE STATE .
12 THE SAME CONSIDERATIONS REQUIRE THE APPLICATION OF THE SAME RULES WHEN THE PROBLEM ARISES OF THE APPLICATION BY ANALOGY OF ARTICLES 27 AND 28 TO INVALIDITY PENSIONS .
13 IT IS EVEN MORE SO WHEN CERTAIN NATIONAL LEGISLATIONS, AS THE PRESENT CASE SHOWS, PROVIDE FOR THE CONVERTING OF INVALIDITY PENSIONS INTO OLD-AGE PENSIONS BEYOND A CERTAIN AGE LIMIT .
14 IT IS NOT POSSIBLE TO REFER TO THE EXISTENCE OF A FUNDAMENTAL DIFFERENCE BETWEEN THE SYSTEMS OF OLD-AGE PENSIONS AND INVALIDITY PENSIONS TO JUSTIFY, AS REGARDS INVALIDITY PENSIONS, THE APPLICATION OF ARTICLE 28 WITHOUT FIRST APPLYING ARTICLE 27 .
15 INDEED THE POSSIBLE COMBINATION OF SYSTEMS OF TYPES A AND B ARISES LIKEWISE IN THE CASE OF OLD-AGE PENSIONS, BUT THIS FACT DOES NOT PERMIT THE APPLICATION, CONTRARY TO THE TERMS OF ARTICLE 28, OF APPORTIONMENT OF THE BENEFIT, WHEN THERE IS NO NEED OF THE SIMULTANEOUS APPLICATION OF ARTICLE 27 TO GIVE RISE TO ENTITLEMENT TO THIS BENEFIT .
16 A DIFFERENT INTERPRETATION WOULD LEAD TO A DISCRIMINATION AT THE EXPENSE OF THE MIGRANT WORKER BY GIVING HIM, IN THE SAME LEGAL CIRCUMSTANCES, SMALLER RIGHTS THAN THOSE ACCORDED TO THE WORKER WHO COMPLETES THE WHOLE OF HIS OCCUPATIONAL CAREER IN A SINGLE MEMBER STATE .
17 IF THIS INTERPRETATION IS CAPABLE OF LEADING IN CERTAIN CASES TO AN ACCUMULATION OF PENSIONS, THIS CONSEQUENCE FOLLOWS NOT FROM THE INTERPRETATION OF COMMUNITY LAW BUT FROM THE SYSTEM AT PRESENT IN FORCE, WHICH, IN THE ABSENCE OF A COMMON SOCIAL SECURITY SCHEME, RESTS ON A SIMPLE COORDINATION OF NATIONAL LEGISLATIONS WHICH HAVE NOT YET BEEN HARMONIZED .
18 IT FOLLOWS FROM ARTICLE 11 OF REGULATION NO 3 THAT THE NATIONAL LEGISLATIONS COULD DEAL WITH THIS SITUATION IF IT IS A QUESTION OF BENEFITS ACQUIRED OUTSIDE THE APPLICATION OF ARTICLES 27 AND 28 OF THIS REGULATION .
19 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE ITALIAN GOVERNMENT, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COURT OF APPEAL, PARIS, BY ORDER OF THAT COURT DATED 3 MAY 1973, HEREBY RULES :
THE APPLICATION BY ANALOGY OF ARTICLES 27 AND 28 OF REGULATION NO 3 TO THE CASES REFERRED TO BY ARTICLE 26 ( 1 ) IMPLIES THAT APPORTIONMENT OF BENEFITS MAY ONLY TAKE PLACE IF IT HAS BEEN NECESSARY, IN ORDER TO GIVE RISE TO ENTITLEMENT, TO AGGREGATE BEFOREHAND THE PERIODS COMPLETED UNDER DIFFERENT LEGISLATIONS .
